Over the weekend, Larry Lessig penned a cogent argument for a common-sense reading of copyright law. The problem, he writes, is that in our attempts to quash peer-to-peer file-sharing (stealing), we're wreaking a huge amount of collateral damage on those that remix content.
In other words, all piracy is not created equal. Some, like the remixers, should be protected by US Fair Use doctrine:
We are in the middle of something of a war here -- what some call "the copyright wars"; what the late Jack Valenti called his own "terrorist war," where the "terrorists" are apparently our kids. But if I asked you to shut your eyes and think about these "copyright wars," your mind would not likely run to artists like Girl Talk or creators like Stephanie Lenz. Peer-to-peer file sharing is the enemy in the "copyright wars." Kids "stealing" stuff with a computer is the target. The war is not about new forms of creativity, not about artists making new art.
Interestingly, Microsoft and Viacom may have already found one great way to manage this: charge for commercial use of their intellectual property, but not amateur use.
Microsoft's policy is focused on open-source software, in which it covenants not to sue unpaid open-source developers. This is incompatible with open source, but it may apply more favorably to the entertainment industry.
Most consumers aren't in the habit of dropping open-source code into their own open-source projects, but many people (including myself) routinely take music or video owned by the major entertainment companies and drop it into family videos. Viacom, as Lessig points out, "has effectively promised to exempt practically any amateur remix from its lawyers' concerns." In other words, it has gone down the road that Microsoft tried to pave for open-source developers.
We need this common-sense approach to remixing content on the Web. We need to encourage creativity, not stifle it. The entertainment industry isn't going to lose any money if my kids' soccer team sees a slideshow that includes music from The Shins. In fact, it might actually gain money as the kids go out and buy more music.
This policy encourages exploration and adoption of new music. Can we please clear out the lawyers for a few minutes so that we get common-sense copyright enforcement?
ISPs are talking about getting into the copyright-enforcement business. It's hard to see where this will end, once it gets going. Privacy advocates are not going to like it, nor should they.
But I wonder if the effort misses the point, anyway. The end goal is for copyright holders to get paid, right? So why not just levy a "tax" (or subscription, if you will) on all broadband users at $5.99/month (or whatever the price should be). Make it mandatory unless someone agrees to have their bandwidth filtered for copyrighted content (unless bought through iTunes or other legitimate means). Then distribute that revenue between the various copyright holders in the entertainment industry.
Sound familiar? It should. This is not too dissimilar from what the music industry already does with ASCAP.
This model would have the benefit of encouraging a multitude of means of discovering, downloading, and trying new content...with the copyright holders getting paid in the process. What is there to lose?
Victor Keegan of The Guardian asks an important question for today's market of near-disposable IP: how long should we allow copyright to endure? When business models increasingly revolve around immediate monetization, does it make sense to hold copyright for 50 to 70 years after the creator dies?
It is curious that there is so much pressure to extend copyright in an internet age defined by the willingness to share knowledge freely, ranging from Wikipedia to the genome project. The reason? Producer lobbies are far more powerful than difficult-to-organise consumer ones.
I'm somewhat biased in this - after all, my understanding of IP came of age under the tutelage of Larry Lessig in law school - but I believe the desire to extend copyright interminably bodes ill for both consumers and creators of intellectual property. That is, provided we actually policed it, which we fortunately don't (or don't strictly) [PDF].
As Keegan points out, and which I've noted before, we don't really have a "respect for IP" problem that goads us into extending copyright. It's just that our producers are still tweaking business models for a digital age that recognize the ease of copying and capitalize on this, rather than fear or shun it:
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